Monday, October 3, 2016

Book Review: The Legal Basis for a Moral Constitution by Jenna Ellis [Aaron Brake]

It
has been over one year since the Supreme Court ruled on Obergefell v. Hodges, a decision which granted legal recognition
and moral validation to same-sex “marriage” in the United States. While this decision
was just one of many abuses fueled by the judicial activism of nine unelected
judges, it was also a culmination of sorts in our culture’s ever-increasing
slide into secular humanism over the last several decades. Many Christians marvel
at how we have come to such a place in a nation originally founded on objective
moral and biblical principles. More importantly, they wonder if there is still
a way back. Enter Jenna Ellis and her book The
Legal Basis for a Moral Constitution.

Ellis
is an attorney, professor, and legal analyst who uses her expertise in these
areas to make a persuasive historical and legal case that grounds the authority
of our nation’s Founding Documents in Divine Law, i.e., the discoverable, objective,
unchanging law of God that includes both science and morality. As she explains,
proper constitutional interpretation will be based on reading the U.S.
Constitution in context, interpreting and applying the text correctly, while taking
into account the original intent of the Founding Fathers. This of course
assumes an objective, fixed meaning to the text, a belief many secular
humanists want to replace with the idea of a fluid, changing Constitutional
document possessing no authority higher than man himself. In so doing, secular humanists
undermine their own position by ridding themselves of any adequate grounding
for objective meaning and value judgments, the very things they seemingly wish
to celebrate after the Obergefell
decision. With no universal authority from God, all that is left is man-made government,
and what the government giveth the government can taketh away. Secular
humanists cannot have their cake and eat it too. This is why our Founding
Fathers appealed to Divine Law in securing our inalienable rights, not a social
contract.

If
that’s the case, does this mean Christians should argue for a moral
constitution based solely on the “personal faith” of the Founders? As Ellis convincingly
argues, that would be a mistake. What we need is an objective, legal basis and attempting to establish
Constitutional intent on personal beliefs does not get to the most important interpretative
question when determining meaning: What
does the text say? Unfortunately, this question has taken a back seat in
recent decades due to judicial activism and the misapplication of judicial
review (Marbury v. Madison), whereby the
Supreme Court has usurped power and effectively elevated itself beyond its
originally intended authority and scope into the unchecked, final arbitrator
regarding the interpretation, application, and constitutionality of laws. With
doctrines like judicial review governing our country, appealing to the
“personal faith” of the Founders simply will not win the debate. We need to get
back to the authoritative basis and correct interpretation of the U.S. Constitution,
and this begins by recognizing “that nearly all of the most prominent and
influential Founders were lawyers.”[1]

Why
is this important? Recognizing the Founders as lawyers is a hermeneutical key that allows us to correctly
interpret the Constitution as well as recognize its legitimate source of
authority. The Founding Documents of our nation (including the Declaration of
Independence and U.S. Constitution) are not just significant works of history
or abstract philosophical reflections with no legal authority. Ellis makes a
historical and contextual case that they are controlling legal documents, with legal
authority, written by lawyers using specific legal language (referred to as “terms of art”) who sought to
preserve the originally intended, objective meaning of the text for future
generations to correctly interpret and apply. But if this is true, it means the
U.S. Supreme Court is not at liberty “to depart from the legal authority and
plain meaning of the U.S Constitution, but is under its authority.”[2] By
the same token, the U.S. Constitution “is not free to depart from its legal
authority, and any interpretation in contradiction to its authority is
necessarily invalid.”[3] This
then raises the question, where does the U.S. Constitution derive its authority?

This
question of Constitutional authority becomes central to the correct
interpretation of Constitutional Law. Ellis argues that contrary to the claims
of secular humanists, the Founders did not establish the authority of the U.S.
Constitution in a social contract theory whereby man is free to create, enforce,
and change morality and the law in accordance with the will and consent of the
majority. This will always result in a “might makes right” philosophy enforced
by an all-powerful government Sovereign. Rather the Founders rooted our
Constitution in Divine Law which encompasses a universal, objective,
discoverable morality that is grounded in the nature and character of God
Himself. This means that the human government our Founders put in place will
necessarily be limited, having no rightful authority to legislate against or
contradict the Moral Law, and that any constitutional interpretation or statutory
law that does so is necessarily illegitimate.

Nevertheless,
don’t take Ellis’ word for it. Read what the Founders themselves wrote in the Founding
Documents. Here they explicitly express their rationale and appeal to the only
legitimate authority possible: God Himself. For example, the Declaration of
Independence specifically refers to Divine Law as its foundational, legitimate
authority in announcing the independent political sovereignty of the United
States. The Founders appeal to that “which the Laws of Nature and of Nature’s
God entitle them” and state unequivocally, “We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights.”[4] No
mention of a “social contract” here. The purpose of government then is to
secure these unalienable Rights that God has given each person. Ellis further unpacks
the idea that the Founding Documents form a purposeful hierarchy, establishing
the historical and legal context for correct interpretation as we employ proper
hermeneutics. Divine Law is the authority which the Declaration appeals to in
order to legitimize U.S. secession and which the other Founding Documents
ultimately rest on. The Federalist Papers offer the rationale for the U.S.
Constitution, the Constitution acting as the supreme law of the land. Common
objections voiced by secular humanists such as “separation of church and state”
and “you can’t legislate morality” are anticipated and answered by Ellis, all
of which fail to recognize the Founders’ original intent and the fact that law
and morality are inextricably intertwined.

In
chapters nine and ten Ellis provides an excellent tour of history documenting our
cultural shift away from Divine Law and toward Social Contract Theory. She
examines case decisions over the last 70 years which have been instrumental in
the Supreme Court’s usurpation of power through judicial activism, the abuse of
judicial review, proof-texting, and eisegesis. The Court has even created new facets
ex nihilo such as the “penumbra” (Griswold v. Conneticut) which literally
allows unaccountable judges to read between the lines of our Constitution
anything they so desire, and then insert their own value judgments. But Ellis
does not simply wax eloquent on the history, legality, and current
constitutional and cultural crisis. She also gives us a way forward out of the
mess: a Convention of States. And guess what? It’s Constitutional and was put
in place by our Founders for such a time as this.

Article
V of the Constitution allows a Convention of States to be called if two-thirds
of the states submit an application to convene.[5]
The idea “is to convene delegates from the states for the specific purpose of
proposing amendment(s) to the U.S. Constitution and quelling the constitutional
crisis on many key levels.”[6] There
are five steps to this process which requires 34 state legislatures to submit
an application to convene. Proposed amendments include a balanced budget,
limiting the use of Executive Orders to enact laws, and term limits on Congress
and the Supreme Court. Ellis contends this is the most feasible and legally
viable solution because only the U.S. Constitution can check the power of the
Supreme Court. But we have to be
involved. We need to educate: ourselves, our churches and our children. We need
to pray. And we need to engage our fellow citizens, culture, and government.

As
Christians we have to recognize the importance of government as a God-ordained
institution and desire to see a return to objective morality and biblical
principles. It is vital we understand the current debate and be able to
articulate it to others. The Legal Basis
for a Moral Constitution not only provides you with the historical, legal,
and intellectual resources to defend your view against an ever-expanding
secular government, but also a game plan to become involved in reclaiming our Constitution
and culture. Christians who hold consistently to the truth of their worldview
and apply its principles correctly find themselves uniquely qualified to be
involved in politics precisely because
the Christian worldview is True, and
the truth of our worldview permeates every area we properly employ the
objective, moral principles found in Nature, Scripture, and our Founding
Documents. We have to be involved, for the current cultural and constitutional
crisis has demonstrated it is our religious liberty itself that is at stake. As
attorney David French has stated in an article earlier this year,

If
the church surrenders the culture without putting up a true fight — without
fully exercising its right and obligation to defend its constitutional freedoms
— then it will richly deserve its legal and political fate. A spirit of
timidity does not come from God, but timidity grips the church. If we don’t
grow bold today, we’ll only have ourselves to blame tomorrow.[7]